Bush Orders State Courts

[Jeff Renz]

I didn't see it as a hoax even though it is a startling development.  My bewilderment is the President's "Order."  I doubt that he can command a state court to do anything.  He could order the US Attorneys to appear as amicus curiae.  He could make findings and conclusions in his Exec Order that defendants' attorneys could rely upon.  But directives to the state courts?  Could he conclude, in an EO, that National Security requires state courts to . . . . [fill in the blank with the flavor of the month.]

Jeff
  ----- Original Message ----- 
  From: Jonathan Miller 
  To: Jeff Renz 
  Cc: conlawprof at lists.ucla.edu 
  Sent: Wednesday, March 09, 2005 9:50 AM
  Subject: Re: Bush Orders State Courts


  It is not a hoax and was picked up by the Washington Post and the LA Times.  
  It is the best thing since sliced bread.  Here is a slightly fuller version that I a 
  distributing to my Constitutional Law students this morning. 

<!--[if !supportEmptyParas]-->                The following information is taken from an International Law listserve:<!--[if !supportEmptyParas]--><!--[if !supportEmptyParas]-->  There has been an unprecedented constitutional development in Medellin v. Dretke, a Texas death penalty case before the U.S. Supreme Court in which a Mexican national argues that State courts are obligated to consider his argument, pursuant to a recent judgment of the International Court of Justice, that he was improperly denied his right to consular notification. The United States contends that a determination of the President (by memorandum dated February 28, 2005) requiring state courts to entertain (without regard to state law doctrines of procedural default) the Vienna Convention claims of  Medellin and the other 50 Mexican nationals who were the subject of the ICJ's Avena judgment, is controlling with respect to those individuals.  Excerpts from the Presidential determination and from the summary of the argument from the brief appear below.<!--[if !supportEmptyParas]--> <!--[endif]-->Presidential Determination dated February 28, 2005<!--[if !supportEmptyParas]--> <!--[endif]-->"I have determined, pursuant to the authority vested in me as President by the Constitution and the laws of the United States of America, that the United States will discharge its international obligation under the decision of the International Court of Justice in the Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Avena), 2004 ICJ 128 (Mar. 31), by having State courts give effect to the decision in accordance with general principles of comity in cases filed by the 51 Mexican nationals addressed in that decision."<!--[if !supportEmptyParas]--> <!--[endif]-->Excerpt from Summary of Argument:<!--[if !supportEmptyParas]--> <!--[endif]-->"In this case, the President, the nation's representative in foreign affairs, has determined that the United States will comply with the ICJ decision. Compliance serves to protect the interests of United States citizens abroad, promotes the effective conduct of foreign relations, and underscores the United States' commitment in the international community to the rule of law. Accordingly, in the exercise of his constitutionally based foreign affairs power, and his authority under the United Nations Charter, the President has determined that compliance should be achieved by the enforcement of the ICJ decision

 in state courts in accordance with principles of comity. That presidential determination, like an executive agreement, has independent legal force and effect, and contrary state rules must give way under the Supremacy Clause.<!--[if !supportEmptyParas]--><!--[if !supportEmptyParas]-->  <!--[endif]-->"In accordance with the President's determination, petitioner can seek review and reconsideration of his Vienna Convention claim, without regard to state law doctrines of procedural default, by filing an appropriate action in state court for enforcement of the ICJ's

decision under principles of comity. State courts will then provide the review and reconsideration that the President has determined is an appropriate means to fulfill this nation's treaty obligations."


<!--[if !supportEmptyParas]--><!--[if !supportEmptyParas]-->  -- 
Jonathan Miller
Professor of Law
Southwestern University School of Law
675 S. Westmoreland Ave.
Los Angeles, CA 90005-3992
Tel. 213-738-6784
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